Internet Defamation: It Must Be False and It'd Better Hurt You

· Defamation,Disparagement,Litigation

Internet defamation cases have one thing in common with all other types of civil action: common sense goes a long way in determining who is going to prevail. Lan Cai, a twenty year old waitress from Texas, suffered two broken bones in her back when her car was plowed into by a drunk driver. She then found out first hand how important the common sense rule could be.

Seeking help on how to deal with the insurance companies and to recover damages, Cai retained the lawyers from Houston's Tuan A. Khuu & Associates to represent her. Apparently, the relationship between attorney and client was less than ideal. Among other things, one of the firm's attorney's showed up in her bedroom was she was half asleep, providing what turned out to be virtually the only personal attention she received. After having her calls ignored, Cai took to Facebook to complain and she eventually wrote a negative review on Yelp.

Cai's social media posts roused the law firm into action in truly self-destructive fashion.

First, one of its attorneys dashed off an email to Cai, threatening to file suit if she didn't immediately take down her negative comments. When this brilliant attempt at cyber bullying failed, the firm actually filed suit for defamation, seeking damages of up to $200,000.00.

Houston attorney Michael Fleming heard about the case and, after agreeing to represent Cai pro bono, filed a motion to dismiss. His motion asserted that Cai's statements were truthful. It also revealed that the law firm already had multiple negative reviews, and therefore Cai's comments couldn't be said to have damaged the firm.

Like many states, Texas has an anti-SLAAP (Strategic Lawsuit Against Public Participation) statute that allows suits suits intended to stifle legitimate public discussion to be thrown out in the early stages of litigation. Fleming argued that the actions of the law firm were clearly an instance of a SLAAP suit and should be thrown out. The judge agreed, dismissed the case, and awarded Cai more than $26,000.00 in legal fees.

The law firm didn't do itself any favors by pursuing litigation against Cai. It demonstrated for all to see what appears to be a rather startling lack of self-knowledge. Worse, it didn't know when to quit. Now, the Yelp page that includes the firm's reviews contains the following warning:

Yelp's reference to the First Amendment is nonsense. A defamation case between private citizens has nothing to do with the First Amendment. But parsing that legal nicety will get the firm...nowhere.